IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
PEORIA COUNTY, ILLINOIS
CHARLES HILL, JR. )
Plaintiff, ) )
vs. ) )
UNITED CONTRACTORS MIDWEST, INC., ) d/
b/a R.A. CULLINAN & SON INC., a )
Delaware Corporation; CENTRAL )
ILLINOIS LIGHT COMPANY d/b/a )
AMERENCILCO, an Illinois Corporation, ) )
Case No: 11- L- 165
PLAINTIFF’S RESPONSE TO DEFENDANT, CENTRAL ILLINOIS LIGHT COMPANY’S
MOTION TO DISMISS COUNT II OF PLAINTIFF’S FIRST AMENDED COMPLAINT
NOW COMES, Plaintiff CHARLES HILL, JR., (hereinafter “Plaintiff’) by his attorneys, the ANKIN LAW OFFICE LLC and in response to Defendant, CENTRAL ILLINOIS LIGHT COMPANY’S (hereinafter “CILCO”) motion to dismiss Count II of Plaintiff’s First Amended Complaint pursuant to Section 2-615 of the Illinois Code of Civil Procedure, responds as follows:
Illinois Courts have repeatedly recognized the dangerous nature of power lines. As such, Illinois Courts have placed an active duty of care upon entities like CILCO who operate to profit from their use. The duty imputed is to ensure that such wires are properly placed and/or insulated where the conditions and circumstances indicate that persons might come in contact or be in proximity of the wires. Viewing the well pleaded facts of Plaintiff’s First Amended Complaint in a light most favorable to him establishes that CILCO failed to maintain the active duty of care required of it under the circumstances. Plaintiff’s First Amended Complaint contains facts establishing that Defendant CILCO knew that large cranes would be operated along a public thoroughfare and in close proximity to its low hanging and uninsulated power lines. Under these facts, Illinois precedent required it to ensure that its wires were properly placed and/or insulated which it failed to do. Wherefore, CILCO’s motion to dismiss Count II of Plaintiff’s First Amended Complaint pursuant to 2-615 should be denied as Plaintiffs First Amended Complaint states a cause of action against Defendant CILCO.
II. STATEMENT OF FACTS
On November 16, 2011, Plaintiff filed his First Amended Complaint. Count II of Plaintiffs Complaint is premised upon “severe and permanent” injuries the Plaintiff sustained following an electrocution on June 3, 2010. At the time of the incident Plaintiff was in the course of his employment for Durdel & Sons Landscaping Tree Service. Durdel & Sons was hired to remove trees as part of a large scale road widening project at or near 500 Northmoor Road in Peoria, Illinois. The trees in question were located near low hanging uninsulated power lines carrying a potentially lethal voltage of 72kV.
Plaintiff further alleges that Defendant, CILCO, owned and/or maintained the power lines adjacent to 500 Northmoor Road in Peoria, Illinois. Further, CILCO was aware that a road widening project was occurring in this area and would require the removal and relocation of not only its electric wires and poles, but also a number of trees located in close proximity to its wires. CILCO was also aware that the process of removing these trees would necessitate the use of a bucket truck with an overhead lift crane operated in close proximity to its potentially lethal uninsulated power lines.
In Count II, Plaintiff avers that CILCO was negligent in breaching a duty owed to Plaintiff. Plaintiff pleads that in situations where it is foreseeable that individuals in the course oftheir employment would be working in close proximity to CILCO’s power lines that CILCO owed a duty to ensure that its lines were properly placed with reference to the safety of such persons and were properly insulated. Despite CILCO’s duty under the circumstances, CILCO took no action to properly insulate its wires, de energize its lines, mark the area, ensure adequate clearance, implement safety measures or otherwise ensure the safety of individuals like Plaintiff. Accordingly, CILCO’s breach of this duty of care owed to Plaintiff proximately caused Plaintiff severe and permanent injuries. (See Attached Exhibit- Plaintiffs First Amended Complaint).
III. STANDARD OF REVIEW
A motion to dismiss with respect to pleadings pursuant to Section 2-615 of the Illinois Code of Civil Procedure attacks the legal sufficiency of the complaint. Pecoraro v. Balkonis, 891 N.E.2d 484; 383 Ill. App.3d 1028, 1033 (Ill. App. 1 Dist.2008). Trial courts may not grant a motion to dismiss because a complaint is “substantially insufficient in law,” unless it clearly appears that no set of facts could ever be proved that would entitle plaintiff to recover. ARTRA Group, Inc. v. Salomon Bros. Holding Co., Inc., 680 N.E.2d 769; 288 Ill.App.3d 467, 470 (Ill. App. 2 Dist.1997). In ruling on a motion to dismiss on the pleadings, a court should inquire whether the allegations of the complaint, when accepted as true and considered in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Rajterowski v. City of Sycamore, 940 N.E.2d 682; 405 Ill.App.3d 1086, 1092 (Ill. App. 2 Dist.20 10).
In a motion to dismiss with respect to defects in pleadings, a party generally may not raise affirmative matters outside the four comers of the complaint. Hamilton v. Conley, 827 N.E.2d 949; 356 Ill.App.3d 1048, 1053 (Ill. App. 2 Dist. 2005). Evidentiary material outside of the complaint may not be considered. Rajterowski 940 N.E.2d 682; 405 Ill.App.3d at 1092 (Ill. App. 2 Dist.2010). Factual defenses are not available under a motion to dismiss brought pursuant to 2-615, and the court may only consider the legal sufficiency of the complaint based upon the allegations in the complaint and not upon affidavits or other supporting materials. Premier Elec. Canst. Co. v. La Salle Nat. Bank as Trustee under Trust No. 49475, 450 N.E.2d 1360; 115 Ill.App.3d 638, 642 (Ill. App. 2 Dist.1983). Normally, it is the function of the jury to resolve questions of foreseeability. Richelman v. Kewanee Machinery and Conveyor Co. 375 N.E.2d 885; 59 Ill.App.3d 578, 782 (1978).
The allegations of Count II of Plaintiffs First Amended Complaint are factually sufficient to establish a negligence claim against Defendant CILCO. Accepting the factual allegations set forth in the Plaintiffs First Amended Complaint requires the court to accept that (1) the incident occurred in the area of a public thoroughfare (2) that Plaintiff was lawfully in this area in the course of his employment for a tree removal subcontractor on a large-scale road widening construction project (3) that Defendant CILCO was aware that the road widening project would require the removal of trees near some of its overhead power lines (4) that CILCO was aware that the power lines in the proximity of these trees were not insulated (5) that removal of the trees would require the use of a bucket truck requiring the use of an overhead lift crane and that (6) despite this knowledge CILCO failed to insulate the power lines, deactivate the power lines, provide flaggers, ensure a safe distance existed between the power lines and the crane. In light of this information, it would be objectively reasonable for CILCO to expect that a crane operated even with due care could come into contact with its overhead uninsulated lines. Under such circumstances and conditions, Illinois law places an active duty of care upon CILCO to see that such wires are properly placed and/or insulated. As a result, Count II of Plaintiff’s First Amended Complaint should not be dismissed.
a. Count II Of Plaintiff’s First Amended Complaint Alleges Facts Sufficient To State A Cause Of Action For Negligence Against Defendant CILCO At The Pleading Stage.
A successful negligence claim must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused the injury the plaintiff sustained. Largosa v. Ford Motor Co., 708 N.E.2d 1219; 303 Ill.App.3d 751, 754 (1999). When deciding whether the defendant owed a duty to the plaintiff, courts consider (1) the foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden in guarding against the injury, and (4) the consequences of placing the burden on the defendant. Ward v. K mart Corp., 554 N.E.2d 223; 136 I11.2d 132, 151 (1990). Foreseeability arises when the injury is likely enough to occur that a reasonably thoughtful person would take it into account in guiding his practical conduct. St. Paul Insurance Co. of Illinois v. Estate of Venute, 656 N.E.2d 113; 275 Ill.App.3d 432, 436-37 (1995).
Illinois Courts have frequently held that “Electricity is a silent, deadly, and instantaneous force, and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use.” Merlo v. Public Service Co. of Northern Illinois, 45 N.E.2d 665, 673; 381 Ill. 300, 312 (1943) citing Austin v. Public Service Company of Northern Illinois, 299 Ill. 112. An electric company owes the legal duty toward every person who, in the exercise of a lawful occupation in a place where he has a legal right to be, whether for business, pleasure or convenience, is liable to come in contact with electrical wires to see that such wires are properly placed with reference to the safety of such person and are properly insulated. Merlo, 45 N.E.2d at 673-74; 381 Ill. at 314 citing 18 Am.Jur. p. 845.
Under circumstances analogous to those in the present case, the Illinois Supreme Court reversed a grant of a motion to dismiss on behalf of an electric company against an electrocuted plaintiff. McGill v. Illinois Power Co, 163 N.E.2d 454, 456; 18 Ill.2d 242, 243-43 (Ill. 1959). The complaint alleged that the plaintiff was an employee installing a roof on his employer’s shed. Id at 455; at 243. The complaint further alleged that the defendant electric company “knew that the [shed] was being erected and that plaintiff and others would be working close to the power lines.” Id As a result the court held that “allegations of the complaint show[ed] that [defendant electric company] observed a potentially perilous situation, and one to which they were not strangers. It thus became their duty to take steps themselves to avert that peril or to communicate what they had observed to those who were in a position to act.” Id Given the defendant’s failure to take remedial action, the Supreme Court held that the decision to dismiss the complaint should have been overruled. Id
Additionally, the fact that power lines are arguably open and obvious has not limited Illinois courts from imputing this heightened duty of care on electric companies. In Martin v. Menard Electric Cooperative, the Fourth District Appellate Court applied the Merlo decision to reverse summary judgment granted for the defendant electric company against an electrocuted employee of an adjacent farm. 559 N.E.2d 1125, 1129; 202 Ill.App.3d 659, 664-665 (Ill. App 41 1990). The employee was electrocuted when a 20 foot aluminum pole he was using to clean a feed bin located on his employer’s farm came into contact with an overhead uninsulated power line. Id at 1126; at 660. In considering the defendant’s argument that the lines were both open and obvious, the court held “While the lines are observable, it is foreseeable that someone who has a right to do so would be working on the bin and be in danger of making contact with the lines.” Id at 1129; at 664-65. Accordingly, the court reversed the summary judgment decision as this “foreseeable danger called out for protection of at least adequate insulation of the wires in the area of the bin.” Id
Moreover, beyond Illinois courts recognizing the heightened duty of care electric companies owe in situations like the one at present, courts have also consider the issue of foreseeability of injury to be a factual question for the jury. In Schmall v. Village of Addison, the Second District Appellate Court reversed summary judgment granted in favor of a defendant electric company holding that a failure to insulate or move wires in the location of an accident is a factual question requiring consideration of the particular facts and circumstances. 525 N.E.2d 258, 262-63; 171 lll.App.3d 344, 348-49 (Ill. App. 2nd 1988). In Schmall, the Plaintiff decedent was electrocuted when a coworker operating a boom crane caused the crane to come into contact with a high voltage uninsulated transmission line while installing a light pole for the Village of Addison. Id at 260; at 345. The Plaintiff decedent averred in his complaint that the defendant, Edison, was negligent in “permitting its high voltage wires to remain, unguarded, unprotected, and uninsulated; in failing to provided adequate warning of the high voltage, and the danger of operating a crane in close proximity to the wires; in failing to deenergize the wire and in failing to move the wire higher or underground or to divert current from the location of the accident.” Id In reversing the summary judgment entered in the lower court, the Second District particularly noted that the issue of whether it is reasonably foreseeable that persons might come in proximity to the wires is a factual question. Id at 263; at 350.
In light of the cited prior decisions of Illinois courts, CILCO’s constructive knowledge concerning Plaintiff’s work activities in the area of the highly charged wires created an active duty on its part to see that such wires were properly placed and/or insulated. Similar to the electric company defendants in McGill, Schmall, and Martin, the well pled facts in Plaintiff’s First Amended Complaint establish that CILCO knew or should have known that the Plaintiff would be operating a crane in close proximity to its uncovered lines. Under these circumstances, it was foreseeable that someone like Plaintiff working with this machinery in close proximity to the uninsulated low hanging lines would be in danger of making contact with the lines. As such this danger demanded at least adequate insulation of the wires in the area of the tree removal. Accordingly, Plaintiff has pled facts in his first amended complaint sufficient to state a cause of action for negligence against Defendant CILCO under current Illinois law.
b. The Facts And Procedural Posture Of The Case At Bar Are Distinguishable From Genaust And Merlo.
Defendant’s reliance on the Genaust and Merlo cases in support of its motion to dismiss is misguided. First, in regard to Genaust, Defendant carefully omits from its discussion of the case that the supreme court never considered the only count in that case analogous to the case at bar; the count brought against the defendant electric company for negligently failing to properly and sufficiently insulate its power wires. In Genaust, the plaintiff brought counts against not only the power company, but also the dealer and manufacturer of the antenna which came in contact with the wire. Genaust v. Illinois Power Company, 343 N.E.2d 465, 468; 62 lll.2d 456, 460 (Ill. 1976). Two of the six counts of the plaintiffs complaint were against the electric company. Id. The circuit court only dismissed the count against the electric company for strict liability; the only count not dismissed at the circuit court level was the negligence count against the electric company. Id. As such, the ultimate decision in Genaust is not instructive for the case at bar.
Additionally, the passage the Defendant cites in his brief from Genaust did not refer to the counts brought against the electric company. Hy-Gain, Rohn and Lurtz were the antenna manufacturer, dealer and tower manufacturer respectfully. Genaust, 343 N.E.2d at 468; 62 111.2d at 460. As a result, the foreseeability discussion Defendant cites concerned the reasonableness of manufacturers and dealers of radio antennas to foresee that their products would be used in proximity to power lines; it did not concern an electric company’s foreseeability. Again, it should be noted that Illinois courts have repeatedly held the duties of electric companies are unique. “Due to the nature of the [electric business], however, a utility company using highly charged wires owes a duty to see that such wires are properly placed and/or properly insulated where the conditions and circumstances reasonably indicate that persons might come in contact with or proximity to the wires. Schmall, 559 N.E.2d at 263; 171 Ill.App.3d 344, 350. Accordingly, the foreseeability test applied to a dealer and manufacturer of antennas is not appropriate for electric companies.
Finally, while the rule concerning an electric company’s duties outlined in Merlo is assistive, the procedural posture makes the ultimate decision not binding on this court’s analysis of the present case. Defendant correctly notes that the Merlo court held the circuit court’s granting of a JNOV was proper. This, however, was only done following that court’s ability to consider the entire record of evidence, which failed to show that the lack of insulation was a proximate cause of the injury. Merlo, 45 N.E.2d at 675; 381 Ill. At 317-16. At the motion to dismiss stage such a consideration is premature. The court in Merlo even noted this difference when it held that despite its ultimate decision concerning the JNOV: “In our opinion there was sufficient evidence in the record tending to prove the negligence charged against [the electric company] to warrant submission of the case to the jury.” !d., at 674; at 314 (emphasis adder!). As such, the ultimate holding in Merlo concerning a JNOV does not bind this court’s decision concerning Defendant’s motion to dismiss.
As the Illinois Supreme Court noted in McGill, an electric company cannot observe a “potentially perilous situation” and turn a blind eye. Illinois courts have repeatedly and consistently imputed an active duty of care upon electric companies like CILCO to ensure that their lines are properly placed and insulated in any situation where they either know or should know that individuals like plaintiff could even be in close proximity to its power lines. Accepting the facts outlined in Plaintiffs First Amended Complaint as true, CILCO had knowledge that large cranes were going to be used to remove trees located next to its uninsulated power lines. Given the foreseeability of injury under these conditions, CILCO’s failure to take appropriate remedial action constitutes a breach of the duty of care owed to Plaintiff. As such, Count II of Plaintiffs First Amended Complaint has alleged facts sufficient to state a cause of action for negligence.
WHEREFORE, Plaintiff respectfully request that this court deny CILCO’s motion to dismiss Count II of his First Amended Complaint. Alternatively, should this court disagree, Plaintiff respectfully request that the dismissal be granted without prejudice and allow Plaintiff an opportunity to file a Second Amended Complaint.
CHARLES HILL, JR.
Ankin Law Office LLC
162 West Grand Avenue
Chicago, Illinois 60654